Pepperdine v. Netflix: battle over fictionalized LA basketball legacy

On February 20, 2025, Pepperdine University commenced an action against Netflix Inc. and Warner Bros. Entertainment Inc. in the US District Court for the Central District of California. The Complaint alleges a total of nine causes of action sounding in trademark infringement and unfair business practices and competition arising from a recent series from Netflix, entitled Running Point, starring Kate Hudson and produced, among others, by Mindy Kaling and Jeanie Buss, loosely based on the life of Buss. Running Point is about a Los Angeles-based basketball team akin to the Lakers but named, for purposes of the show, the Waves. 

Pepperdine alleges that the trademark WAVES, the colors, and the logo used by the fictional team in Running Point (which, according to the Complaint, is a “raunchy comedy”) are identical or confusingly similar to Pepperdine’s own athletics program and its registered and common law marks. By its Complaint, Pepperdine makes a jury demand for injunctive relief, treble damages, disgorgement of profits, corrective advertising, and attorney’s fees and costs of the suit.

In a press release issued on February 20, 2025, Pepperdine’s Senior Vice President and Chief Marketing Officer, Sean Burnett, stated: “Without our permission, Netflix continues to promote Running Point, a new series that has misappropriated our trademarked name, the Waves, our colors, blue and orange, our hometown of Los Angeles, and even the year we were founded as an institution. Given this flagrant disregard for our intellectual property and the damage to our institutional identity, together with Netflix’s and Warner Bros.’ continued refusal to resolve Pepperdine’s concerns, we believe it necessary to seek court intervention.” 

The Complaint spotlights the fact that the fictional team is located in Pepperdine’s hometown of Los Angeles. This, of course, is no coincidence given that the show is loosely based on executive producer Buss’s life, whose family has owned the Los Angeles Lakers for decades. The Complaint also alleges that Running Point “promotes” a specific player’s number 37, which is Pepperdine’s mascot’s number signifying Pepperdine’s founding. Much of the Complaint’s allegations also focus on the alleged juxtaposition of Pepperdine’s Christian values in contrast to the themes explored in Running Point, which Pepperdine alleges are incongruent.

Pepperdine points out that even though Buss is the executive producer of the show and controls its IP to the Lakers’ IP, the producers chose not to use the Lakers’ trademarks and colors. Less persuasively, Pepperdine contends that by “utilizing the scenic Malibu in its trailer,” Netflix is capitalizing on Pepperdine’s brand. It seems reasonable, and indeed, typical, for a show set in Los Angeles to include shots of Malibu in its trailer and or opening sequence. 

Also implausible is Pepperdine’s argument – an element of the cause of action for trademark infringement – that the defendant’s actions have or will cause confusion, deception, or mistake in the relevant consuming public about Pepperdine’s association with the show. In my opinion, it seems more reasonable that the relevant consuming public understands that the show is a fictionalized version of the Lakers and its owner, Buss – a fact that Pepperdine readily admits – not the Pepperdine Waves, and therefore will not be confused.

Pepperdine is off to a bad start: on February 26, 2025, the court denied Pepperdine’s motion for a temporary restraining order, finding that it has not met its burden of establishing the likelihood of success on the merits.  The court ruled that, under the Rogers test, outlined in Rogers v. Grimaldi, 875 F.2d 994 (2d Cir. 1989), the Lanham Act does not apply because:

1. the use of the WAVES mark in Running Point is artistically relevant to the use of the mark and
2. the use of the WAVES mark does not explicitly mislead consumers as to the source of the series.

Thus, in denying the temporary restraining order, the court ruled: “Pepperdine cannot succeed on its claims for trademark infringement and false designation of origin.” (Case 2:25-cv01429-CV-ADS, Document 26, filed February 26, 2025, page 8.)  

To conclude, the court relied on the defendant’s testimony that the WAVES mark “was chosen as a nod to the real-life Lakers, whose team name alludes to a body of water” and that the mark is meant to evoke a “Southern California ‘vibe,’ associated with beaches, sub, surfing, and waves.” (Declaration of Brett Paul in Support of Defendant’s Opposition to Motion for Temporary Restraining Order (Doc. # 18-3, ¶¶ 5-6)). The court found this testimony to be sufficient evidence of the existence of a modicum of artistic relevance. 

The court also found that given that the show’s opening credits and marketing campaign would indicate that it is being produced by Netflix, Warner Bros, and Kaling (among others), the consumer would not be misled as to the source of the series. In other words, the court concluded that the consumers would not reasonably believe that the show is produced by or affiliated with Pepperdine.

Despite the setback, on February 26, 2025, Pepperdine issued a press release indicating that it will “continue the defense of WAVES trademark against Netflix, Warner Bros. infringement.”

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